Citation Nr: 0505515
Decision Date: 02/28/05 Archive Date: 03/04/05
DOCKET NO. 04-06 653 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUE
Whether the denial of entitlement to service connection for
hearing loss in a February 1994 rating decision should be
reversed or revised on the basis of clear and unmistakable
error (CUE).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M.S. Lane, Counsel
INTRODUCTION
The veteran served on active duty from May 1943 to July 1946.
This matter comes to the Board of Veterans' Appeals (Board)
from a November 2003 rating decision in which the Department
of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh,
Pennsylvania, determined that a February 1994 rating decision
denying service connection for hearing loss should not be
reversed or revised based on allegations of CUE.
FINDING OF FACT
The veteran has not alleged an error of fact or law in the
February 1994 rating decision that compels the conclusion, to
which reasonable minds could not differ, that the results
would have been manifestly different but for the error.
CONCLUSION OF LAW
The veteran has not demonstrated clear and unmistakable error
in the February 1994 rating decision. 38 U.S.C.A. § 5109A
(West 2002); 38 C.F.R. § 3.105(a) (2004).
REASONS AND BASES FOR FINDING AND CONCLUSION
Preliminary matter
The Board has considered the application of the Veterans
Claims Assistance Act of 2000 (VCAA), which sets forth VA's
duty to inform a claimant of the evidence needed to
substantiate his or her claim, and to assist the claimant in
obtaining the relevant evidence. See, in general, Pub. L.
No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp.
2004); 38 C.F.R. § 3.159 (2004).
However, the Board finds that the provisions of the law and
regulation do not apply to the veteran's claim. In this
regard, the Board notes that the United States Court of
Appeals for Veterans Claims (the Court) has held that the
provisions of VCAA do not apply to a claim based on a
previous decision having been the result of clear and
unmistakable error. Livesay v. Principi, 15 Vet. App. 165
(2001) (en banc).
The Court found that an attempt to obtain benefits based on
an allegation of clear and unmistakable error "is
fundamentally different from any other kind of action in the
VA adjudicative process." Livesay, 15 Vet. App. at 178.
As such, an allegation of clear and unmistakable error does
not represent a "claim," but a collateral attack on a final
decision. The provisions of VCAA, and its implementing
regulations, are not, therefore, applicable to the
adjudication of the issue of clear and unmistakable error in
a prior final decision.
Analysis
In a February 1994 rating decision, the RO denied the
veteran's claim of entitlement to service connection for
hearing loss. In that decision, the RO noted that the
veteran's service medical records were negative for any
complaints or findings of hearing loss while on active duty,
and that physical examination at separation revealed his
hearing to be normal.
The RO also noted that the veteran first reported
experiencing hearing loss in his right ear in 1963 and in his
left ear in 1981. The RO essentially concluded that the
evidence did not show that his current hearing loss was
related to his military service. The veteran was notified of
this decision in April 1994.
The veteran did not appeal the February 1994 rating decision.
No further communication was received from the veteran until
July 2000, when he filed a new claim of entitlement to
service connection for hearing loss.
Although this claim was initially denied, and the veteran
appealed, the record reflects that the RO did ultimately
grant service connection for bilateral hearing loss in a May
2001 rating decision, effective the date of the July 2000
claim. In that decision, the RO noted that the veteran had
undergone a VA examination in December 2000 in which the
examiner concluded that the veteran had a bilateral hearing
loss disability that was due in part to exposure to loud
noises while serving as a cannoneer during World War II.
Thereafter, in October 2003, the veteran's accredited
representative submitted a statement asserting that the RO
had committed CUE in the February 1994 rating decision. The
representative essentially argued that the RO should have
arranged for the veteran to undergo a VA examination before
denying his claim, and that such an examination would have
likely resulted in a positive medical opinion similar to the
opinion given in the report of his December 2000 VA
examination.
In support of his claim, the veteran also submitted a
statement dated in December 2003 in which he essentially
argued that the RO was incorrect to conclude that he had
first experienced hearing loss in 1963. He asserted that he
had actually first experienced hearing loss in service.
As noted above, the record reflects that the veteran did not
appeal the February 1994 rating decision. Therefore, that
decision became final. 38 U.S.C.A. § 7105 (West 2002). Such
final decisions may, however, be reversed or amended where
evidence establishes that CUE existed. 38 U.S.C.A. § 5109A,
38 C.F.R. 3.105(a)
The United States Court of Appeals for Veterans Claims
(Court) has consistently stressed the rigorous nature of the
concept of CUE. "Clear and unmistakable error is an
administrative failure to apply the correct statutory and
regulatory provisions to the correct and relevant facts. It
is not mere misinterpretation of facts." Oppenheimer v.
Derwinski, 1 Vet. App. 370, 372 (1991). "Clear and
unmistakable error' requires that error, otherwise
prejudicial,...must appear undebatably." Akins v. Derwinski,
1 Vet. App. 228, 231 (1991). Clear and unmistakable errors
"are errors that are undebatable, so that it can be said that
reasonable minds could only conclude that the original
decision was fatally flawed at the time it was made."
Russell v. Principi, 3 Vet. App. 310, 313-4. "It must always
be remembered that CUE is a very specific and rare kind of
'error'." Fugo v. Brown, 6 Vet. App. 40, 43 (1993).
The Court propounded a three-pronged test for determining
when there was CUE present in a prior decision. (1) Either
the correct facts, as they were known at the time, were not
before the adjudicator (i.e., more than a simple disagreement
as to how the facts were weighed or evaluated) or the
statutory or regulatory provisions extant at the time were
incorrectly applied; (2) the error must be undebatable and of
the sort which, had it not been made, would have manifestly
changed the outcome at the time it was made; and (3) a
determination that there was CUE must be based on the record
and law that existed at the time of the prior adjudication in
question. Russell, 3 Vet. App. at 313-14.
CUE that requires revision of a prior final rating action
exists only where it appears "undebatably" that "[e]ither the
correct facts, as they were known at the time, were not
before the adjudicator or the statutory or regulatory
provisions extant at the time were incorrectly applied."
Russell, 3 Vet. App. at 313.
In Fugo, 6 Vet. App. at 40, the Court refined and elaborated
on the test set forth in Russell. The Court stated that CUE
was a very specific and rare kind of "error." It was the
kind of error, of fact or law, that when called to the
attention of later reviewers compelled a conclusion, to which
reasonable minds could not differ, that the result would have
been manifestly different but for the error.
The veteran and his representative have made two specific
allegations of error in the February 1994 rating decision.
Cf. Fugo v. Brown.
First, the veteran has asserted that the RO was incorrect to
conclude that he had first experienced hearing loss in 1963.
He contends that he actually first experienced hearing loss
in service, and that he had submitted statements to that
affect prior to the February 1994 rating decision.
However, the Board notes that, in the VA Form 21-526,
Veteran's Application for Compensation and Pension, received
in December 1993, the veteran specifically noted that he was
seeking service connection for "Hearing Loss-R Ear-1963"
and "L Ear-1983."
With that application, the veteran also submitted an April
1993 letter from a private physician in which it was noted
that the veteran had a longstanding history of hearing loss
in the right ear, and that, since 1981, he had also
experienced hearing loss in his left ear.
Also of record at the time of the February 1994 rating
decision were the veteran's service medical records, which
included the report of a July 1946 separation examination
showing that his hearing was found to be normal at discharge.
Thus, the Board finds that there is evidence which supports
the RO's interpretation of the facts in the February 1994
rating decision. In essence, this evidence can be reasonably
interpreted to support the RO's findings that the veteran's
hearing was normal in service, and that he did not began to
experience hearing loss until many years after separation
from service. The RO correctly cited the veteran's
application as reporting no hearing loss prior to 1963. Thus
it did not commit CUE in finding that he reported that
hearing loss first occurred in 1963.
Consequently, the Board finds that the RO was not
"undebatably incorrect" in its failure to grant service
connection in the February 1994 rating decision.
The second specific allegation of CUE involves the
representative's contention that the RO should have arranged
for the veteran to undergo a VA examination prior to the
February 1994 rating decision. This amounts to no more than
an argument that VA failed in its duty to assist the veteran
in the development of evidence.
The Court has explained that VA's breach of the duty to
assist cannot form a basis for a claim of CUE because such a
breach creates only an incomplete rather than an incorrect
record. Caffrey v. Brown, 6 Vet. App. 377, 384 (1994); see
Hazan v. Gober, 10 Vet. App. 511, 522-23 (1997) (following
Caffrey).
In short, the Board finds that the veteran has not pointed to
any error of fact or law which is such that it would compel
the conclusion that the result would have been manifestly
different but for the error.
Thus, the Board must conclude that there was no CUE in the
February 1994 decision.
ORDER
The veteran's claim alleging clear and unmistakable error in
a February 1994 rating decision is denied.
____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs